Limbo: Reversal of McAuliffe’s Voting Rights Order & Gun Rights

Gov. Ter­ry McAuliffe’s mas­sive restora­tion-of-rights order for about 206,000 felons prompt­ed 13,000 of them to reg­is­ter to vote before the Supreme Court of Vir­ginia over­turned the order last month.

Because restora­tion of civ­il rights is a pre­req­ui­site to an appli­ca­tion for the restora­tion of firearms rights, a num­ber of ex-offend­ers sub­se­quent­ly used their new sta­tus to apply to cir­cuit courts through­out the state to restore their gun rights.

But now author­i­ties and indi­vid­u­als involved in gun-rights restora­tion poten­tial­ly affect­ed by the court rul­ing are con­front­ed with a murky legal and logis­ti­cal ques­tion: What to do with ex-offend­ers who suc­cess­ful­ly applied to have their gun rights restored and now pos­sess firearms?

“It’s quite a pick­le for the cit­i­zens active­ly involved,” said Seth Saun­ders, a Rich­mond crim­i­nal defense attor­ney who also spe­cial­izes in firearms-rights restora­tion.

“None of them did any­thing wrong … but it’s cre­at­ed a mine­field of issues when it comes to the process,” he said. “There is no sol­id answer right now, and that’s part of the prob­lem.”

The issue is yet anoth­er unin­tend­ed con­se­quence of the Demo­c­ra­t­ic governor’s order, and the Supreme Court of Virginia’s rul­ing on July 22, in response to a legal chal­lenge by Repub­li­can Gen­er­al Assem­bly lead­ers.

“The Supreme Court dealt with vot­ers in its order, but not oth­er Vir­gini­ans who had relied on the governor’s order to exer­cise cer­tain rights and priv­i­leges. The sit­u­a­tion will ulti­mate­ly require some judi­cial clar­i­fi­ca­tion from a cir­cuit court, or per­haps the Supreme Court itself.”

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It’s hard togauge how many peo­ple are caught up in the gun-rights lim­bo. Local pros­e­cu­tors said they did not see a huge leap in appli­ca­tions for firearms restora­tion after the governor’s blan­ket civ­il-rights restora­tion orders in April, May and June.

Those orders auto­mat­i­cal­ly grant­ed to non­vi­o­lent and vio­lent felons alike who had com­plet­ed their sen­tences the right to vote, sit on a jury, become a notary pub­lic and seek elec­tive office.

But the absence of guid­ance from the courts regard­ing the gun-rights restora­tion since the Supreme Court over­turned McAuliffe’s order restor­ing oth­er rights has left no clear direc­tion on how to han­dle those who obtained guns in the inter­im, peo­ple involved in the process said.

“I can only imag­ine that your firearms restora­tion is not valid if you are some­one caught in the mid­dle,” said Rich­mond defense attor­ney Susan Allen, who han­dles restora­tion issues as part of her prac­tice.

“If you no longer have a valid civ­il-rights restora­tion, you don’t meet the eli­gi­bil­i­ty require­ments.”

Saun­ders, how­ev­er, said he could argue that clients who suc­cess­ful­ly pur­sued restora­tion of gun rights under the author­i­ty of the governor’s mass civ­il-rights restora­tion order are enti­tled to retain their firearms, despite the rescind­ed civ­il-rights order.

“If I took a ripe claim to the courts — which it was at the time a judge signed off on it — that tells me the rights are restored and valid,” he said. Oth­er­wise, Saun­ders said the courts or law enforce­ment need to clar­i­fy the law “and let all folks affect­ed know it has been cor­rect­ed.”

The con­sen­sus among commonwealth’s attor­neys and law enforce­ment offi­cials inter­viewed appears to be that peo­ple who obtained firearms using the now-rescind­ed mass civ­il-rights restora­tion order tech­ni­cal­ly are no longer legal­ly allowed to pos­sess them.

“Indi­vid­u­als need to refer back to the governor’s web­site for direc­tion on how to pro­ceed con­cern­ing the steps nec­es­sary to secure a valid restora­tion of their vot­ing rights,” the Vir­ginia State Police said in a state­ment.

“Once that’s accom­plished, then those indi­vid­u­als will have to reap­ply through the cir­cuit court to have their gun rights restored.”

If some­one in pos­ses­sion of a firearm as a result of the order is stopped by a law enforce­ment offi­cer, the state police said the indi­vid­ual would need to show doc­u­men­ta­tion of gun-rights restora­tion.

The offi­cer would advise the per­son that “any firearm in that individual’s pos­ses­sion at the time would have to be turned over to anoth­er indi­vid­ual,” such as a fam­i­ly mem­ber, neigh­bor or friend, “who can law­ful­ly pos­sess a firearm.”

Offi­cials said that if no one else was in the vehi­cle when the per­son was stopped, the offi­cer would need to take cus­tody of the weapon until a per­son legal­ly able to pos­sess the firearm could claim it.

Defense attor­neys said that if some­one pos­sessed a weapon and had not received notice that the gun rights are no longer valid, such cir­cum­stances would not war­rant the fil­ing of charges for ille­gal pos­ses­sion of a firearm, let alone suc­cess­ful pros­e­cu­tion.

“You’ve got a darn good defense,” Allen said. “You would be hard-pressed to think any­body is going to be con­vict­ed under those cir­cum­stances.”

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But those caughtin the mid­dle of the gun-rights sit­u­a­tion still face addi­tion­al obsta­cles.

As a result of the Supreme Court rul­ing, state elec­tions offi­cials set an Aug. 8 dead­line for local reg­is­trars to remove from the vot­ing rolls the names of the 13,000 felons who had reg­is­tered under McAuliffe’s order.

The gov­er­nor said he would rein­state indi­vid­u­al­ly the vot­ing rights of all who had received them under the blan­ket orders he issued in April, May and June.

To date, how­ev­er, none of those affect­ed has had their rights indi­vid­u­al­ly restored. On Fri­day, McAuliffe’s office said he will make a “major” announce­ment on rights restora­tion on Mon­day.

Felons wish­ing to vote will have to wait until they receive notice from the gov­er­nor that their indi­vid­ual rights are restored and then re-reg­is­ter — a process that takes lit­tle time and no mon­ey.

But peo­ple who have to reap­ply to a cir­cuit court for gun rights poten­tial­ly face addi­tion­al court costs and legal fees to restore their firearms rights.

The process, which involves a sched­uled court hear­ing and review by a local commonwealth’s attorney’s office, also can take time — any­where from three weeks to months, defense lawyers say.

“It’s not some­thing you can do on a Tues­day after­noon,” Saun­ders said.

Hen­ri­co Coun­ty Commonwealth’s Attor­ney Shan­non L. Tay­lor, among the first to raise the gun-rights lim­bo issue after the Supreme Court’s rul­ing, said she believes a num­ber of cir­cuit judges, rec­og­niz­ing the poten­tial legal chal­lenge to McAuliffe’s orig­i­nal order, con­tin­ued cas­es involv­ing firearms restora­tion to avoid the poten­tial con­flict.

After the Supreme Court rul­ing, the Vir­ginia Asso­ci­a­tion of Commonwealth’s Attor­neys sent an email to pros­e­cu­tors through­out the state rais­ing the issue and sug­gest­ing ways to han­dle gun-rights cas­es once they come back around.

“After review­ing the research and com­mu­ni­cat­ing with the Hen­ri­co Cir­cuit Court, we have decid­ed that for the one or two indi­vid­u­als who fall into this cat­e­go­ry, we will issue a show-cause motion to bring them back before the court so that the judge might be able to explain what has hap­pened with the Vir­ginia Supreme Court deci­sion and how it void­ed their order,” Tay­lor said.